HALSTEAD' v. MANNING, BOWMAN

& CO.

565

by them, after a careful C?nsideration of the subject, have been against the one we made, and which We now overrule. See Fales v. Chicago, 82 Fed. Rep. 678; Gavin v. Vance, 83 Fed. Rep. 84; LoomUJ v. Coal 00., ld. 353; Railroad 00. v. Rauroad Co., ld. 385. Motion denied.

HALSTEAD

'V.

MANNING, BOWMAN & Co.

(Oircuit Oourt, S. D: Nezo York. April 18, 188S.)
COURTS-FEDERAL-OBJECTIONS TO JURISDICTION-DEMURRER.

A bill for infringement of a patent; in the circuit court for the Southern district 9fNew York, by a citizen of that state, alleged that the defendant was a corporation. gf Connecticut doing business in the. district. Held, on demurrer to tbe bJ1l, for which a special appearance only had been entered, that the court had no jurisdiction; the defendant, unuer the act of congress of March 8, 1887, not being liable to suit outside of the district of which it was an inhabitant, except where it consents thereto, or waives its objection, or where the jurisdiction of the circuit court is invoked solely on the ground of diverse citizenship.

InEquity. Bill for F. W. Crocker, for complainant. Edwin B. Smith, for respondent.

On demurrer to bill.

WALLACE, J. The defendant raises by demurrer to the bill of complaint the objection that this court has not jurisdiction over the person of the defendant. The bill alleges the infringement by the defendant of letters patent of the United States granted to the complainant for a new and useful improvement in stewing kettles or boilers, and also alleges that the defendant is a corporation organized under the laws of the state of Connecticut, and doing business in the Southern district of New York. Prior to the act of congress of March 8, 1887, the defendant could have been sued here, if" found" within the district, but that act has made a radical change in the former'provisions of law respecting the jurisdiction of this conrt, and a defendant can no longer be sued outside the district of which he is an inhabitant, unless he consents, or waives his right to object, except where the jurisdiction of the circuit court is founded only on the fact that the action is between citizens of different states. The present action.does not fall within that category; and, as the facts showing want of jurisdiction appear upon the face of the bil1, and the defendant has not appeared generally in the action, bnt specially, in order to raise the objection by demurrer, the demurrer must be sustained.

r.

:ii:-:t,;'

GATCH t1. FITCH SurmAN

et

v.

GATCH

et al.

(Oircuit OOU1·t, D. Indiana.

February 2, 1888.)

BANKS AND BANKING-NATlvNAL BANKS-!NSOLVENCy-PREFERENCES BY STOCKHOLDER. .

Section 2, act Congo June 80, 1876. (19 St. at Large, p. 68,) provides that the individual liability of shareholders of an insolvent national bank, fixed by Rev. St. U. S.. \:j 5151. "may be enforced by any creditor of such association by bill in equity in the nature of a creditors' bill brought by such creditor on be· half of himself and all other creditors." Held, that a mortgage of all his in: executed by a cashier stockholder of such bank. after qividual it had closed 1tsdoors. to secure "a depOSItor, amounted to a preference, and was void as against a judgment recovered against the cashier by the receiver U. S. § 5151, either in the hands of the receiver or in those of under .. a purchaser fro,1n him for value.
",I -,

In Equity. On demurrer to cross-bill. Duncan, Smith« WiLson, for cross-complainants.
The cross-bill Sunman alleged that the City National Bank of Lawrenceburgh closed its doors on August 10, 1883, in insolvency, and never opened up for bUlliness therellfter; Walter Fitch, a defendant to the cross-biU, was its cashier, and ownAd $5,000 of the stOck of the bank; thatdefendant Gatch was a depositor in the bank at the time of its suspension in the sum of $14,that there were a large llumber of creditors, and the ass.ets of the bank were insufficient to pay its creditors in full; that on August 11th, and after the bank had suspended, Gatch, who resided in Lawrenceburgh, demanded and procured of Fitch a mortgage on all the lands owned by Fitch, to secure and protect him as such depositor; that such lands were of the value of $4,000, and constitutell all the property owned by Fitch; that Gatch knew that }fitch, was such cashier and stockholder, and that this mortgage covered all thepl'Operty owned by him; U\at there was no other property out ,of whi('h an assessment by thA' comptroller upon Fitch as stockholder, f01" the benefit of the creditol'S ofthe bank, could be paid; that this mortgage was made and received for the purpose amI with the intent of securing Gatch apl'tlference over the other eredilors in thl' payment of his debt; that there was no consideration for this mortgage other than the debt of the bank; thatin 1884 the comptroller appoirited a receiver for the bank; that the receiver exhausted all the available assets of the bank, which failed to pay the creditors, and thereupon an assessment Of 50 pel' cent. was made by the proper authorities upon all the stockhaving failed to meet this assessment, the holders" including Fitch; that, receiver. under instructions, instituted an action in this coul't'against him to r.ecover the amount, and did recover a judgment for $2,500,-the,llmount of assessment; that ex,eout.ion issued on this jUdgment, and was returned nulla bona,' thereupon the receiver)iled.his petition in this and, under the instructions and ol"der of this coui·t. sold the judgment to the crosscomplainant, at public auction. at the court-house door of Dearbol'n county, in the city of Lawrenceburgh, after proper notice, the said cross-complainant being the highest and best bidder; that this sale was reported to thecomt, confirmed, and t,he judgment Ilssigned to Sunman. Subsequently Gateh brought his suit in the state court to foreclose his mortgage. making Sunman a defendant. The latter proclU"ed the removal of the cause to this court. and tiled